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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: SEPTEMBER 23, 2014 SUIT NO. NIC/LA/67/2011 BETWEEN Mr. Sylvanus Effiong Edet - Claimant AND 1. The Inspector General of Police 2. Police Service Commission - Defendants REPRESENTATION Audu Augustine, O. K. Salawu, Mrs. Funmi Falana, Solomon Kehinde, Tolu Agbona, for the claimant. Selem Amachree and B. O. Nnandi, for the 1st defendant. No legal representation for the 2nd defendant. JUDGMENT The claimant had taken up a complaint against the defendants dated and filed on 12th July 2011 claiming for – a) A declaration that the purported termination of the claimant’s employment by the defendants without affording the claimant the opportunity to be heard is unconstitutional, illegal, null and void and of no effect whatsoever. b) A declaration that the purported dismissal of the claimant from the Nigeria Police Force after he had been effectively retired via a police wireless message reference DTO.220930/01/2007 and ref. SB.4770/FS.FHQ/ABJ/T.4/85 is illegal, null and void and therefore a nullity and of no effect whatsoever or however. c) An order of court setting aside the purported dismissal and upholding the verdict of retirement in a police wireless message reference DTO.220930/01/2007 and ref. SB.4770/FS.FHQ/ABJ/T.4/85. d) An order of court compelling the defendants to pay to the claimant all his outstanding salary arrears and other emolument which the defendants had illegally stopped for no reason whatsoever or however. Accompanying the complaint are the statement of facts, list of witnesses, list of documents to be tendered at the trial (all dated 10th July 2011) and copies of the documents. The 1st defendant entered appearance by filing its memorandum of appearance, statement of defence, list of documents to be tendered at the trial and copies of the documents. On the order of Court made on 22nd March 2012, the claimant filed a written statement on oath on 11th May 2012. The 1st defendant filed its written statement on oath of its witness on 8th August 2012. The 2nd defendant did not enter any appearance, did not file its memorandum of appearance, did not file any defence process, did not join issues with the claimant, and did not have any legal representation throughout the hearing of the case despite the service of hearing notices on it. By Order 8 Rule 5(1) of the National Industrial Court (NIC) Rules 2007, where a defendant fails to file a memorandum of appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment. In like manner, despite joining issues with the claimant, the 1st defendant’s counsel appeared only twice throughout the hearing of the case; and in that appearance was able to cross-examine the claimant’s witness in the sitting of 8th August 2012. Thereafter, the 1st defendant did not appear or even lead its witness in evidence. By Order 19 Rule 2 of the NIC Rules 2007, where a cause is called for hearing and the claimant appears but the defendant and/or counsel do not and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. At the trial, only the claimant called any witness. The claimant testified on his own behalf as CW and was cross-examined by the 1st defendant. At the Court’s sitting of 13th February 2013, when the defence was to open their respective cases, it was reported that counsel to the 1st respondent passed on. For that reason, the Court granted the defendants the opportunity to open their defence; but all through the Court’s sittings of 8th May 2013, 26th June 2013, 22nd October 2013 and 4th June 2014, the defendants did not make any appearance in Court. The Court accordingly proceeded with the trial and urged the filing of written addresses as per Order 19 rule 13 of the NIC Rules 2007. Only the claimant filed his written address dated and filed on 18th October 2013. The defendants did not file theirs. The case of the claimant is that he was a former employee of the defendants and served in various departments of The Nigeria Police Force (NPF) between 1984 and 2006. In recognition of his hard work and commitment to duties, he rose through the ranks in the NPF to Deputy Superintendant of Police (DSP). In 2003, he was recommended by the Inspector General of Police (IGP) and sent for a United Nations Peace keeping Mission in Kosovo. While in Kosovo, he was alleged of gross misconduct and repatriated for same. On his return to Nigeria, he was queried by the 1st defendant and after considering his defence by the disciplinary panel, he was recommended for retirement and was accordingly retired via police wireless message SB.4770/FS/ABJ/T.4/85. Dissatisfied with the defendants’ action, he wrote an appeal to the defendants requesting that his punishment be reconsidered in view of his track record in the NPF. Surprisingly, rather than reviewing the verdict of retirement, the defendants considered the appeal and dismissed the claimant in 2010 from service with effect from 22 January 2007. The claimant formulated four issues for the determination of the Court, namely – 1. Whether the summary dismissal of the claimant is wrongful, null and void. 2. Whether the subsequent dismissal of the claimant from the services of the defendants after he had been effectively retired via police wireless message ref. SB.4770/FS/ABJ/T.4/85 on the same offence for which he had been retired from service amounts to double jeopardy. 3. Whether in considering an appeal a reviewing officer can impose a heavier punishment than the one earlier imposed on the claimant by the disciplinary committee. 4. Whether the claimant is entitled to the reliefs sought in his complaint and statement of facts before the Court. Regarding issue 1, the claimant contended that summary dismissal is generally punitive and usually without any benefits to the employee. The employee stands disgraced and held in ignominy, citing Eheagwu v. Nigeria Army [2006] 11 NWLR (Pt. 991) 382. Furthermore, that summary dismissal presupposes that an employee is guilty of serious misconduct hence a dismissed employee stands little or no chance of being engaged in another employment. It is indeed a serious dent on an employee’s working career, referring to John Kunnink v. Costan Blaservant Dredging Ltd [1960] LL 190 and J. A. Irem v. Obubra District Council [1960] SCNLR 70. The claimant continued that he had contended that his dismissal from the service of the defendants was unlawful. In support of his claim, he testified that he served the defendants faithfully within the period of his service and that it was in recognition of his service that he was recommended for peace keeping mission in Kosovo. That he denied the entire allegation made against him and made representation to the disciplinary committee set up by the defendants to look into the matter. At the close of hearing, the claimant was retired via a police wireless message. The defendants on the other hand contended that the dismissal of the claimant was lawful. However, that they failed to adduce evidence to prove that the dismissal of the claimant was lawful. That it is trite law that he who asserts must prove, referring to Ukpabio v. NFVCB [2008] 9 NWLR 227, Uzokwe v. Densy Industries Nig. Ltd [2002] 2 NWLR (Pt. 752) 528 and Elemo v. Omolade [1968] NWLR 359 P. 240 – 241 (wrong citation). That it was the defendants who asserted that he committed offences of gross misconduct for which he was dismissed. The defendant, therefore, has the obligation to prove their allegation before the Court to justify the dismissal. That the defendants at the close of the claimant’s case did not call any witness in its defence; the claimant’s case is accordingly not challenged in the absence of any other better evidence or case presented by the defendants. To the claimant, referring to paragraphs 5 – 8 of the statement of defence, the defendants pleaded that the claimant brought shame to the Nigeria police by giving his service pistol to a civilian and drinking alcohol while on duty as well as being found with 26 rounds of ammunition while he was being repatriated. The claimant then submitted that it is trite that pleading on which no evidence is led is as good as dead, it is deemed abandoned, referring to Ochin & ors v. Ekpechi [2000] 5 NWLR (Pt. 656) 225 at 240. That the defendants’ pleading in the statement of defence upon which evidence was not led is deemed abandoned. Similarly, all the frontloaded documents attached to the statement of defence having not been admitted in evidence and marked accordingly are equally deemed abandoned. Furthermore, that civil cases are determined on preponderance of evidence, evidence on each side is placed on an imaginary scale, citing Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi [1978] 2 SC 79 at 81. To the claimant, the defendants have not been able to place any evidence on their own side of the imaginary scale; there is, therefore, no evidence before this Court for consideration. That the evidence and materials placed before the Court by the claimant were unchallenged and so the claimant has established his case entitling him to judgment. The claimant then urged the Court to resolve issue 1 in his favour. On issue 2, the claimant asked whether, even if his dismissal were to be lawful, his subsequent dismissal after he had been effectively retired via police wireless message ref. SB.4770/FS/ABJ/T.4/85 on the same offence for which he had been retired from service not amount to double jeopardy. The claimant referred to section 36(9) of the 1999 Constitution, as amended, which to him is a provision that is meant to ensure that a person is not made to suffer eternity for an offence committed or alleged to have been committed. That where an offender has been punished or convicted for a crime such a person should not be allowed to suffer another punishment for the same offence; this will definitely amount to double jeopardy. To the defendant, the rule of double jeopardy is not only restricted to criminal conviction or acquittal alone; that it has been extended to punishment of any sort and quasi-judicial decision of tribunals and administrative panels, referring to Bernard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 481. The defendant then continued that the claimant was repatriated on allegation of misconduct and being in possession of six rounds of live ammunitions. He was tried by the Force Disciplinary Committee of the defendants and found guilty of the allegation and recommended for compulsory retirement from the services of the defendants; and by a police wireless message No. DTO:220930/01.2007 he was retired alongside other officers, the claimant being No. 73 on the list. He appealed for reconsideration of the termination of his appointment and the matter referred to the Review Panel for determination. That in the proceedings of the Force Disciplinary Committee (FDC) dated 13th August 2008, he compulsorily retirement was confirmed and allowed stand. That his subsequent dismissal from the services of the defendants on the same ground for which he was retired from service amounts to double jeopardy. The defendants in paragraph 9 of their statement of defence had pleaded that the claimant’s name appeared in error on the list of officers retired. Even at this, the claimant argued that the defendants have not taken any step to correct the error since 2007, neither was there any communication from the defendants to the claimant to the effect that his name appeared on the retirement list in error and that his proper verdict was dismissal. It is the submission of the claimant that the defendants are estopped from denying the state of affairs having made the claimant to believe and rely on his retirement from service, referring to Ige & ors v. Amakiri & ors [1976] 2 SC 1, Horicon Ltd v. Wasurum [1987] 4 NWLR (Pt. 66) 646, Ikpuku v. Ikpuku [1991] 6 NWLR (Pt. 196) 127 and Inyang & ors v. Ebong [2000] 2 NWLR (Pt. 751) 184 at 334. The claimant went on that there was no evidence before the Court to prove the said averment in paragraph 9; and the burden of proof to prove same lies with the defendants, citing Ukpabio v. NFVCB [2008] 9 NWLR 227, Uzokwe v. Densy Industries Nig. Ltd [2002] 2 NWLR (Pt. 752) 528, Elemo v. Omolade [1968] NWLR 359 P.240 – 241 (wrong citation), Asika v. Atuanya [2008] 17 NWLR 497 and Onyenge v. Ebere [2004] 13 NWLR (Pt. 889) 29. That there was, therefore, no basis for the summary dismissal of the claimant who had been effectively retired since 2006. That the dismissal is malicious and witch-hunting and it is intended to deprive him of the benefit of termination under the law. He urged the Court to resolve issue 2 in his favour. Regarding issue 3 i.e. whether in considering an appeal a reviewing officer can impose a heavier punishment than the one earlier imposed on the claimant by the disciplinary committee, the claimant contended that the Black’s Law Dictionary, 6th edition, defines appeal as follows – Resort to a superior (i.e. appellate) court to review the decision of an inferior court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed (emphasis is the claimant’s). That the same dictionary defines review as “to re-examine judicially or administratively. A reconsideration; second view or examination; revision; consideration for purposes of correction”. To the claimant, the injustice he seeks to correct or reverse in his appeal was his termination from the services of the defendants. That in considering an appeal, the appellant cannot be put in a worse position than he was at the end of the case against him, referring to COP v. Ossai [1962] 2 NSCC 134 at 137. In consequence, that the review committee cannot put him in a worse position than he was at the end of the case against him. Continuing, the claimant submitted that in exercising appellate jurisdiction, an appeal court will not interfere with the decision of the lower court where there is no appeal against sentence even when the sentence of the lower court is inadequate, citing Nafiu Rabiu v. State [1980] 12 NSCC 291 and Thomas v. State [1996] 9 NWLR (Pt. 337) 129 at 139. That in the instant case, there is no cross-appeal by the defendants on the punishment meted out to the claimant. The only appeal before the review panel was that of the claimant passionately asking for a reversal of the punishment. The review committee can only confirm, reverse or reduce the punishment and not to increase same. That it will be unfair labour practice (the Court having jurisdiction over unfair labour practice in virtue of section 254C(1)(f) of the 1999 constitution, as amended) and against legal justification for a claimant to be confronted with dismissal letter upon consideration of his appeal. The claimant went on that the standard practice within and outside our jurisdiction is for the employer upon consideration of the employee’s appeal to reduce the punishment or reverse its decision or worst confirm the punishment; but in the instant case, the reverse was the case as the claimant was dismissed. That the claimant cannot be put in a worse situation than he was at the end of the case against him as this will be unfair labour practice having regard to what is obtainable in a civilized society within and outside of our jurisdiction. The claimant then urged the Court to hold that the practice adopted by the defendants is unfair labour practice and that the review committee cannot impose a heavier punishment than the one earlier imposed on the claimant by the disciplinary committee; and that the Court should resolve issue 3 in his favour. On issue 4 i.e. whether the claimant is entitled to the reliefs sought in his complaint and statement of facts, the claimant answered in the affirmative. That there is no evidence to substantiate paragraph 9 of the defendants’ statement of defence to the effect that the claimant’s name erroneously appeared in the circular as one of the persons retired from service; and the burden of proof is on the defendants. Furthermore, that where evidence is led by a party and there is no contrary evidence by the other party, the evidence is deemed to be true and correct, referring to Iriri v. Erhurhobara [1991] 2 NWLR (Pt. 173) 152, AG Ogun State v. Coker [1993] 9 NWLR (Pt. 316) 141 and Asafa Foods Factory v. airline Nig. Ltd [2002] 12 NWLR (Pt. 781) 353. That it is trite that where a claimant’s case is unchallenged the judge has no other case to deal with other than the case stated by the claimant in his statement of claim, citing Okeobor v. Police Council [2003] 12 NWLR (Pt. 834) 481. To the claimant, the only case before the Court is the claimant’s and so it is unchallenged in the absence of any other better evidence or case presented by the defendant, referring to Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi [1978] 2 SC 79 at 81. The claimant continued that summary dismissal carries with it infamy and deprives one of benefits which retirement does not. It denies an employee of any terminal benefits. It presupposes that an employee is guilty of serious misconduct hence a dismissed employee stands little or no chance of being engaged in another employment. It is indeed a serious dent in an employee’s working career, citing John Kunnink c. Costan Blaservant Dredging Ltd [1960] LL 190 and J. A. Irem v. Obubra District Council [1960] SCNLR 70. However, that if the dismissal is invalid then it is null and void and so in law it is as if it never occurred, referring to UTC v. Nwokoruku [1993] 3 NWLR (Pt. 281) 298 and Imoloame v, WAEC [1992] 9 NWLR (Pt. 265) 303. The claimant went on that apart from the payment of severance package which was wrongly denied him due to his unlawful dismissal, he is also entitled to damages for unlawful dismissal, citing Imoloame v, WAEC, Nigeria Produce Marketing Board v. Adewumi [1972] 11 SC 111, WNDC v. Abimbola [1966] NMLR 381 and Mobil v. Asuah [2001] 30 WRN 25 at 45; [2001] 16 NWLR (Pt. 740) 723 at 758. That having held that the claimant was unlawfully dismissed from his employment, he is entitled to be paid his unpaid salary and allowances, referring to Savannah Bank Nig. Plc v. Fakokun [2002] 1 NWLR (Pt. 749) 544 and Imoloame v, WAEC. The claimant then urged the Court to resolve issue 4 in his favour. In conclusion, the claimant prayed the Court to enter judgment in his favour as per his complaint and statement of facts. I heard learned counsel and considered all the processes filed in this matter. The defendants, at the close of the claimant’s case, did not call any witness in its defence. The claimant accordingly submitted (asking in the process for judgment to be entered in his favour) that the evidence and materials he placed before the Court as well as his case is thereby not challenged in the absence of any other better evidence or case presented by the defendants. In Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, this Court held that – Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and the accompanying originating processes and who intends to defend the action to file defence processes as provided therein. Order 9, therefore, recognizes the right of a defendant not to defend an action filed against him/her. And by Order 19 Rule 2, where the defendant is absent at the trial and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. This Rule, of course, accords with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. It was as a result of all of this that the Court then permitted the claimant to argue its case even in the absence of the defendants. In like manner, the claimant in the instant case cannot assume that he is entitled to automatic judgment just because the defendants did not open their defence or call any witness. The claimant must prove his case in order to succeed. The claimant, however, placed much reliance on the case of Bernard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 470 – 471, which held that in most cases where a plaintiff’s case is not challenged, he succeeds. To the Supreme Court, this is because the trial Court has no other case to deal with other than the case stated by the plaintiff in his statement of claim and in oral evidence. The case went on at pages 472 – 473 to hold that where a defendant fails to file a defence, he will be deemed to have admitted the claim. On the minimal proof rule stated in Buraimoh v. Bamgbose [1989] 3 NWLR (Pt. 109) 353, which is that where the defendant does not give evidence the onus of proof on the plaintiff would be satisfied on a minimal of proof, the Supreme Court held it to be an obiter dictum. To the Supreme Court, it is clear that in Buriamoh, the word used is “minimal”; but that if there is nothing on the other side of the scale, why the minimal proof? How is all of this applicable to the instant case? In consonance with Okeobor v. Police Council, there is actually something on the other side. The 1st defendant filed its statement of defence and its accompanying documents (marked during the trial as Exhibits NPF1 – NPF9) including much later a witness statement on oath. This sworn witness statement on oath is as good and actually approximates to affidavit evidence and/or the oral testimony on oath. When the cause of action arose in Okeobor v. Police Council, there was no system of frontloading as presently required by Rules of Court, hence the reference throughout the case to no oral evidence on the part of the defendant who did not enter any defence. This is the reason why the claimant in the instant case argued further that the defendants’ pleading in the statement of defence upon which evidence was not led is deemed abandoned and so all the frontloaded documents attached to the statement of defence having not been admitted in evidence and marked accordingly are equally deemed abandoned. In Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, this Court held that – …the practice in this Court, going by sections 36 and 37 of the Trade Disputes Act 2004, section 12 of the National Industrial Court Act 2006 and Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, in allowing the frontloading of documents assumes them to be automatically admitted except specifically objected to by the opposing party. The question of the weight or probative value to be attached to the frontloaded documents is, however, separately and independently considered by the Court when evaluating the frontloaded documents. The case of Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454 itself gave the justification as follows – All of this is made possible given that this court is generally enjoined to be flexible and less formal; and while it is enjoined to apply the rules of evidence, it may depart from it in the interest of justice. In this regard, this Court, for instance, admits secondary evidence of documents, not necessarily the primary evidence where there is no dispute regarding the authenticity. In general, but particularly in this Court, it must be noted that Order 19 Rule 9(ii) of the NIC Rules 2007 provides that “Documentary evidence shall be put in and may be read or taken as read by consent”. Additionally, the following principles of law enunciated by the Courts may further be noted. In this regard, Akinola v. VC, UniIlorin [2004] 11 NWLR (Pt. 885) 616, Agbaisi v. Ebikerefe [1997] 4 NWLR (Pt. 502) 630 and Agbahomoro v. Edieyegbe [1999] 3 NWLR (Pt. 594) 170 held that a Court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. And by Faladu v. Kwoi [2003] 9 NWLR (Pt. 826) 643 at page 657, a defendant who failed to file pleadings is still entitled to a hearing. He could, for example, decide to rely on a point of law inherent in the plaintiff’s case without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff’s case and simply wish to address the trial court on the issues raised in the plaintiff’s case. Like I pointed out earlier, the 1st defendant filed defence processes as well as a sworn deposition, which cannot be wished away. They all qualify as something on the other side within the contemplation of Okeobor v. Police Council; and so would be used accordingly for purposes of this judgment. This means that the claimant must prove his case in order to succeed. The claimant’s argument that the defendants did not enter any defence or call in evidence and so his case must be deemed admitted cannot accordingly stand as such. The facts of the case as can be gleaned from the documents frontloaded by the parties, Exhibits A and B filed by the claimant and Exhibits NPF1 – NPF9 filed by the 1st defendant, are that in 2003 vide Exhibit NPF1 dated 4th November 2003, the claimant was queried for discreditable conduct. By the query, the claimant in Kosovo “conducted [himself] in a manner that is unworthy of a police officer which resulted [in his] being repatriated from the multinational peacekeeping mission in Kosovo”. The query went on to state as follows – Furthermore when you were about leaving the mission area for Nigeria upon being repatriated, it was discovered at the Pristina Airport, that you had in your possession twenty-six rounds of live ammunition of various calibers in your luggage. When questioned as to the source of the ammunition, you could not satisfactorily give any reason as to how you came about the said ammunition as you had already returned the arm and ammunition assigned to you for official duties. From all of this two misconducts are in issue: the first conduct unworthy of a police officer and for which the claimant was repatriated; and secondly, being found with 26 rounds of ammunition at Pristina Airport. Now, all through the mass of documents frontloaded and even in terms of the report of the disciplinary committee over the matter, nowhere can it be found what the conduct unworthy of a police officer was. It is only paragraph 5 of the 1st defendant’s statement of defence that it is stated that the claimant gave his service pistol to a civilian in Kosovo and that he engaged in drinking alcohol on duty while in the mission area. The point I seek to make is that the allegations that the claimant gave his service pistol to a civilian in Kosovo and drinking alcohol on duty while in the mission area are unsubstantiated and the claimant was not accosted with them in terms of the disciplinary hearing. The only misconduct against the claimant and for which he was accosted remains, therefore, being found with 26 rounds of ammunition at Pristina Airport. The claimant answered the query in Exhibit NPF1 vide Exhibit NPF2 dated 10th November 2003. By Exhibit NPF3 (same as the claimant’s Exhibit B), the claimant alongside others was retired with effect from 31/12/2006. Through his counsel, the claimant complained to the Chairman, Police Service Commission (PSC) about the termination of his employment vide Exhibit NPF4, a letter dated 1st March 2007. The PSC in Exhibit NPF5 asked for the response of the Inspector General of Police (IGP) regarding the claimant’s petition in Exhibit NPF4. By Exhibit NPF6, a letter dated 3rd October 2007 replying Exhibit NPF4, the claimant was asked to appear before the Review Panel for the determination of his matter. The IGP in Exhibit NPF7 dated 23rd December 2008 then gave his response to the Chairman, PSC recommending in the process dismissal of the claimant with effect from 25/11/2008. The actual recommendation is an attachment to Exhibit NPF7 dated 4th December 2008. By Exhibit NPF9 dated 8th June 2010 (which is also the claimant’s Exhibit A), the claimant was dismissed with effect from 22/01/2007. Exhibit NPF9 asked the claimant to acknowledge receipt of the dismissal letter; this the claimant did on Exhibit A, the claimant’s frontloaded copy. By the claimant’s acknowledgment on Exhibit A, the original of the dismissal letter was received by him on April 11, 2011. With this narrative and evidence, can it be said that the claimant was not afforded the opportunity to be heard as to be entitled to relief a)? By relief a), the claimant is praying for “a declaration that the purported termination of the claimant’s employment by the defendants without affording the claimant the opportunity to be heard is unconstitutional, illegal, null and void and of no effect whatsoever”. Fair hearing as we all know is opportunity to be heard. See Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC. In Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt.1262) 624 at 640, the Supreme Court held that where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answered the respondent’s queries before he was dismissed from his employment. That fair hearing simply means, “Hear the other side”. In the instant case, the claimant was queried. He answered the query and a decision was taken. He did not like the decision taken and so he appealed against it; and a final decision of dismissal was taken. I have no hesitation whatsoever in finding and holding that the requirement of fair hearing has been met in the instant case. The claimant’s relief a) accordingly fails and so is hereby rejected and dismissed. By relief b), the claimant is praying for “a declaration that the purported dismissal of the claimant from the Nigeria Police Force after he had been effectively retired via a police wireless message reference DTO.220930/01/2007 and ref. SB.4770/FS.FHQ/ABJ/T.4/85 is illegal, null and void and therefore a nullity and of no effect whatsoever or however”; and then relief c) prays for “an order of court setting aside the purported dismissal and upholding the verdict of retirement…”. In support of these prayers, the claimant relied on section 36(9) of the 1999 Constitution, as amended, which provides as follows – No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. Here, the argument of the claimant is that he had suffered on the double jeopardy rule, referring to Bernard Okeobor v. Police Council & 2 ors [2003] 12 NWLR (Pt. 834) 444 at 481. In criminal trials, where an accused is convicted and sentenced, and he/she appeals against the sentence, an appellate court is entitled to increase the sentence if the appeal is not successful. In like manner, when the claimant appealed against his punishment, he opened up that punishment for review. So if the reviewing authority finds that appeal unsuccessful, the claimant merely then opened up his initial punishment to review; in which case, if a punishment higher that what he initial got is given to him, he has only himself to blame. The case of Okeobor v. Police Council cited by the claimant is distinguishable from the instant case. In Okeobor v. Police Council, the appellant had already been punished for the offence he committed while still in service; and then was subsequently and further tried (there is no evidence that the appellant appealed the first punishment meted out on him) for the same offence while still in service, found guilty and then dismissed. In the instant case, the claimant was retired after his trial; he then appealed thereby reopening his case. He was not in service when he appealed and so the question of double jeopardy could not have arisen. His act of appeal against his punishment opened up the inquiry reminiscent of an appeal against sentence in a criminal trial properly so called. It should be noted that the case of Nafiu Rabiu v. The State cited by the claimant held that an appeal is a continuation of the action being appealed against; it is not a fresh case. In that sense, the argument of the claimant as to double jeopardy is untenable and so is hereby rejected. In further support of his argument, the claimant had argued that the standard practice within and outside our jurisdiction is for the employer upon consideration of the employee’s appeal to reduce the punishment or reverse its decision or worst confirm the punishment; but in the instant case, the reverse was the case as the claimant was dismissed. Nothing was advanced by the claimant to substantiate this assertion. The claimant had also submitted that he cannot be put in a worse situation than he was at the end of the case against him as this will be unfair labour practice having regard to what is obtainable in a civilized society within and outside of our jurisdiction. Once again, nothing was advanced to substantiate this submission. In the documents frontloaded by the claimant, the claimant had two additional documents attached to his Exhibit B, namely, “Brief for Force Disciplinary Committee” dated 16th April 2008 written by ACP Jonathan Towuru, Asst. Force Secretary I and the “Proceedings and Observations of the Force Disciplinary Committee (FDC)” dated 13th August 2008. In this latter document, the FDC recommended that the claimant be compulsorily retired with effect from 31-12-2006, effectively affirming Exhibit NPF3 (also Exhibit B). Beneath the signatures on the “Proceedings and Observations of the Force Disciplinary Committee (FDC)” is the heading “Decision”. Under “Decision” are the words written in handwriting and signed – The conduct of the officer brought shame to the Nigeria Police Force. Compulsory retirement not enough. He should be dismissed. Now the claimant did not show to the Court whether the recommendation of the FDC by law can be overridden by any officer or authority. Here, the claimant did not place before the Court or cite any rule of regulation of the Police Force that says that the recommendation of the FDC is final and must be accepted. All that the claimant argued is that in his case, the worst case scenario is that his retirement should have been affirmed. For these reasons, this Court cannot grant reliefs b) and c) as prayed. They accordingly fail and so are dismissed. Given that relief a), b) and c) have failed, and that the claimant did not prove his case, relief d), which is for “an order of court compelling the defendants to pay to the claimant all his outstanding salary arrears and other emolument which the defendants had illegally stopped for no reason whatsoever or however” cannot, therefore, be granted. Relief d) accordingly fails and so is dismissed. On the whole, the claimant’s case fails and is hereby dismissed. Judgment entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip